Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Spain

Labour Inspection Convention, 1947 (No. 81) (Ratification: 1960)
Labour Inspection (Agriculture) Convention, 1969 (No. 129) (Ratification: 1971)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee takes note of the Government’s reports and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020). It also notes the observations on Convention No. 81 made by the General Union of Workers (UGT), sent with the Government’s report, and by the Trade Union Confederation of Workers’ Commissions (CCOO), received on 9 August 2019. The Committee also notes the observations on Conventions Nos 81 and 129 made by the International Organisation of Employers (IOE) together with the Spanish Confederation of Employers’ Organizations (CEOE), received on 16 September 2019. The Committee also notes the Government’s replies to all these observations. In addition, the Committee notes the observations of the UGT and the CEOE submitted in 2020 together with the supplementary information provided by the Government, as well as the Government’s reply to these observations.

Measures adopted in the context of the COVID-19 pandemic. The Committee appreciates the Government’s efforts to provide information on the measures adopted in the context of the COVID-19 pandemic. In particular, the Committee notes the adoption of Royal Decree No. 463/2020 of 14 March, declaring a state of emergency and the adoption of exceptional measures to prevent the spread of the virus and protect the health of workers and the population, including: (i) streamlining of inspection visits; (ii) preventive and protective measures depending on risks at the workplace (including the establishment of a health crisis management unit); and (iii) reorganization of the resources of the Labour and Social Security Inspectorate (ITSS) so as to allocate all available means to the health emergency in the world of work, with priority given to activities related to the pandemic in provincial inspectorates.

In this regard, the Committee notes the observation of the UGT that the ITSS must receive the necessary means and resources to deliver additional work resulting from the temporary mandate that it received to supervise compliance by employers with their obligations related to public health in the context of the pandemic. It also considers that ITSS staff should have the power to stop the activities of enterprises that do not comply with the requirements related to the prevention of the spread of the virus.

The UGT also indicates that in the current context, the ITSS should intensify its activities in the agricultural sector, notably regarding contractual fraud, accommodation of casual workers and supervision of occupational safety and health measures. Finally, the UGT indicates that the General Council (the body that enables social partners’ participation in the labour inspection system) has not been meeting over the last year nor exercising its functions.

Furthermore, the Committee notes that the CEOE indicates that it is essential to intensify the assistance and information role of the ITSS for SMEs and microenterprises as they are heavily impacted by the pandemic, and to widely disseminate the ITSS instructions and criteria so as to facilitate the correct application of standards.

The Committee notes that, in reply to the UGT observations, the Government indicates that Royal Legislative Decree No. 21/2020 of 9 June, on urgent measures to prevent and contain the health crisis and coordinate the response, has temporarily enabled the undertaking of interventions in the area of public health not only by ITSS inspectors, but also assistant OSH inspectors  and, if need be, qualified technicians in  Autonomous Communities.

Regarding the UGT’s observations on the agricultural sector, the Government indicates that the number of ITSS activities planned for 2020 has increased by 21 per cent compared with 2019 and that these activities addressed all aspects of the labour relation, including living and working conditions as well as safety and health.

Regarding the General Council, the Government indicates that the current situation due to the pandemic has prevented the normal functioning of this body and that it would resume its work, in the same way as the Executive Board, the functions of which are interrelated, once the reorganization of the latter is finalized.

Finally, the Committee notes that in reply to the CEOE’s observations the Government indicates that the ITSS performs its assistance and information role in the course of inspection activities, with a view to facilitating better compliance by enterprises, and that the ITSS publishes the technical criteria adopted when it receives questions of interpretation relating to certain issues in the performance of its functions. The Committee expresses the hope that the UGT’s concerns and the priorities mentioned by the CEOE will be examined by the General Council when resuming its functions. It requests the Government to provide information in this regard.

Articles 3(1)(a) and (b), 10, 16 and 21(f) and (g) of Convention No. 81 and Articles 6(1)(a) and (b), 14, 21 and 27(f) and (g) of Convention No. 129. Number of labour inspectors who perform duties according to the terms of the Convention. Statistics included in the annual report. In its previous comment, the Committee asked the Government to provide information on the human resources policy followed for identifying the number of inspectors and sub-inspectors needed to ensure adequate coverage of workplaces liable to inspection and on any changes in selection procedures. The Committee notes the Government’s statements in its report that: (i) human resources needs in public administrations, with budget allocations, which cannot be covered by existing staff numbers are indicated in document entitled “Public employment posts”, which is approved annually by the governing bodies of public administrations in accordance with the criteria set forth in the General State Budgets Act, including the staff replacement rate established in that Act; (ii) under section 5 of Act No. 23/2015 of 21 July establishing the Labour and Social Security Inspectorate (ITSS), entry into the various corps comprising the ITSS occurs in accordance with the regulations for entry into the public service; and (iii) announcements of positions for each corps of the ITSS must contain the number of posts authorized by the Council of Ministers in the Royal Decree approving the public employment posts of the General Administration of the State and those proposed by Autonomous Communities that have received transfers of inspectors and sub-inspectors.

The Committee also notes the UGT’s indications in its observations that the number of officials belonging to the ITSS is insufficient given the objectives and extensive scope of their supervision and control duties and there is no mention of the number of support officials belonging to the ITSS or of the material resources to ensure its functioning. In this regard, the Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection staff numbers increased from 944 inspectors and 854 sub-inspectors in 2016 to 999 inspectors and 922 sub-inspectors in 2018; in addition, in 2016 and 2017, a total of 119 inspector posts and 152 sub-inspector posts were filled; (ii) the report on the implementation of the Management Plan 2018-2019-2020, submitted to the Council of Ministers of 9 August 2019, indicates that it is planned to incorporate at least 833 new inspectors and sub-inspectors into the ITSS during the implementation period, which would signify a 23 per cent increase in staff numbers over the next five years; (iii) since the approval of the Management Plan in July 2018, a total of 33 new inspectors have already been incorporated into the ITSS and 154 new inspectors and sub-inspectors were due to be appointed as career civil servants in July 2019 (47 inspectors, 54 social security sub-inspectors and 53 occupational safety and health (OSH) sub-inspectors); (iv) by Royal Decree No. 955/2018 of 27 July, the public employment posts for 2018 were approved, with notices issued for selection procedures for 353 new inspector and sub-inspector posts, the finalization of which was planned for July 2019; (v) all support staff employed prior to the effective entry into operation of the ITSS have been incorporated into the latter, in both central and outlying services; and (vi) in 2018, a total of €229,221.29 were spent on ITSS furnishings and fittings, and €251,642.42 were spent on building modernization work.

The Committee also notes the UGT’s assertion that it is essential that budget allocations are approved to finance the activities of the labour inspectorate. In this regard, the Government states that through the Management Plan the ITSS was assigned its own, differentiated budget for the first time under the General State Budgets Bill for 2019. This budget involves a 24.4 per cent increase in comparison with the ITSS budget for 2018, rising from €126.46 million to €157.36 million.

Furthermore, the Committee notes the Government’s indication that, as recorded by the ITSS annual report, in 2018 a total of 266,718 inspections gave rise to 1,020,063 actions, with 91,325 infringements of the social legislation detected (including 2,455 requests made to the administration), with proposed penalties amounting to €307,566,196.48. Lastly, the Committee notes that, in response to its request to provide information on the setting up of the National Anti-Fraud Office, the Government states that, under section 13.1 of its Statutes (Royal Decree No. 192/2018 of 6 April 2018), this office is one of the component bodies of the ITSS central structure and is responsible for promoting and coordinating the implementation of measures to combat undeclared work, irregular employment, social security fraud, and also the coordination and integration of such measures with inspection activities as a whole. The Government also indicates that the functioning of this office is regulated by sections 15–17 of the ITSS Statutes and that its staff currently comprises 11 inspectors and six sub-inspectors. While noting this progress, the Committee requests the Government to continue providing information on changes in the numbers of officials who form part of the Labour and Social Security Inspectorate (ITSS), and also on the material resources assigned for its functioning.

Article 3(2) of Convention No. 81 and Article 6(3) of Convention No. 129. Additional duties of labour inspectors. Mediation and conciliation. The Committee notes that, in reply to its request to indicate the number of inspectors and the proportion of time that these devote to mediation activities, the Government states in its report that: (i) no specific number of inspectors assigned to mediation duties has been established; (ii) Act No. 23/2015 of 21 July establishing the ITSS provides that it is incompatible for the same person to simultaneously performing arbitration and inspection duties in relation to establishments under his/her control and supervision; and (iii) the number of interventions related to mediation in collective disputes or strikes was 106 in 2016, 98 in 2017 and 146 in 2018, representing between 0.07 and 0.10 per cent of total actions relating to labour relations, which means that mediation tasks in disputes and strikes accounts for a very low proportion of annual activity as a whole.

Articles 4 and 5(b) of Convention No. 81 and Articles 7(1) and 13 of Convention No. 129. Supervision and control of the labour inspection system by a central authority. Collaboration with employers and workers. In its previous comment, the Committee noted the setting up, through Act No. 23/2015, of the ITSS, an autonomous entity having its own legal personality, and asked the Government to send information on the adoption of its statutes as provided for by law. The Committee notes the Government’s indication that Royal Decree No. 192/2018 of 6 April approved the statutes of the entity, thereby making it operational.

The Committee also notes the UGT’s claim that the functions of the tripartite General Council provided for in section 11 of Royal Decree No. 192/2018 must include awareness of regional action plans and programmes. The Committee also notes that the CCOO underlines the need for the most representative trade unions to participate in the formulation of the Management Plan for Decent Work. In this regard, the Committee further notes that the IOE and the CEOE indicate in their joint observations that it is important to foster cooperation between the social partners at the level of both the State and the Autonomous Communities in the formulation of action plans and inspection campaigns. In this regard, the Committee notes the Government’s reply that Act No. 23/2015 has reinforced the institutional participation of the social partners in the labour inspection system, establishing a specific participation body called the General Council. The Government adds that Royal Decree No. 192/2018 describes the General Council’s functions of providing information, conducting hearings and holding consultations, and also the rules governing its functioning and composition. In particular, section 11 of the Royal Decree establishes that the General Council shall have other functions, that of informing the Executive Board of any proposals made regarding, inter alia, ITSS general action plans and programmes, and also the necessary measures and strategies for their implementation. The Committee requests the Government to provide information on the functioning in practice of the ITSS General Council, including examples of the manner in which it ensures cooperation between labour inspection officials, on the one hand, and employers and workers and their organizations, on the other.

Article 7(2) and (3) of Convention No. 81 and Article 9(3) of Convention No. 129. Adequate training for inspectors. The Committee notes the Government’s indication, in reply to its previous request regarding the implementation of both initial and further training in the prevention of occupational risks, that initial training in occupational risk prevention has continued to be given as part of the selection procedure for labour and social security inspectors, and has been reinforced since 2017 through the implementation of the selection procedure for occupational safety and health (OSH) sub-inspectors, followed by a period of mentoring in some provincial inspectorates that have specialist OSH units. The Government also indicates that further training courses have been given on occupational risk prevention in various subjects and sectors, such as the Maritime Labour Convention, 2006 (MLC, 2006), OSH conditions in the construction sector and agriculture, and risk prevention.

Articles 9, 10, 13 and 17 of Convention No. 81 and Articles 11, 14, 18 and 22 of Convention No. 129. Inspection staff numbers and monitoring of safety conditions in workplaces. In its previous comment, the Committee asked the Government to take steps to ensure that its OSH strategy achieves an adequate balance between prevention and the provision of advice, on the one hand, and the imposition of penalties, on the other. The Committee also asked the Government to provide information on the recruitment of OSH sub-inspectors and the impact thereof on inspection activities relating to occupational risk prevention.

The Committee notes the Government’s statement that in 2017 a total of 113,336 compliance notices were issued, 17,046 infringements were recorded and penalties amounting to €46,705,535.25 were imposed; in 2018, a total of 114,779 compliance notices were issued, 20,290 infringements were recorded and penalties amounting to €51,279,286.58 were imposed. The Government also indicates that the work of the ITSS in occupational risk prevention has been reinforced through measures such as increasing the number of inspectors and establishing the new corps of OSH sub-inspectors. In particular, the Government states that 32 officials were incorporated into active service in June 2018 and 53 have already completed their selection process and period of mentoring, and are awaiting assignment to different destinations to commence active service in provincial inspectorates. The Government also indicates that, given the short period of time that has elapsed since the incorporation into active service of the first trained group of OSH sub-inspectors, it would be premature to undertake an assessment of the effect of this on the degree of compliance with occupational risk prevention regulations and the industrial accident rate. While noting this progress, the Committee requests the Government, once it is in a position to assess the impact that the incorporation into active service of labour sub-inspectors has on the degree of compliance with occupational risk prevention regulations and the industrial accident rate, to provide information in this regard.

Article 12(1)(c)(ii) of Convention No. 81. In its previous comment, the Committee noted that Act No. 23/2015 extended the powers of employment and social security sub-inspectors (SESS) to include those provided for in the Convention, in particular those authorizing them to copy documents, and asked the Government to consider the possibility of SESS being able to examine the related legal issues arising under that Act in accordance with Basic Act No. 1/1982 of 5 May establishing civil protection of the right to honour, personal and family privacy, and personal reputation (LOPCDH). The Committee notes the Government’s indication that section 14.4 of Act No. 23/2015 provides that, pursuant to the service orders received for the performance of their duties, labour sub-inspectors, who will have the status of enforcement officers, are authorized to proceed in the manner established in section 13(1)–(4) (duties of inspectors). The Government also indicates that section 15.4 of Act No. 23/2015 provides guarantees to the officials of the system, including labour sub-inspectors, in stipulating that, for the purposes established by section 8(1) of LOPCDH, actions taken by the ITSS for the fulfilment of its duties shall on no account be considered as unlawful interference.

Specific issues relating to labour inspection in agriculture

Articles 6(1)(a), 21 and 24 of Convention No. 129. Enforcement duties of labour inspectors in agriculture. In its previous comment, the Committee asked the Government to provide information on the measures taken to ensure performance of the inspection function with regard to hours of work in agriculture. The Committee also asked the Government to provide information on the measures taken or envisaged to ensure compliance with the legislation regarding conditions of work in labour cooperatives and dependent workers defined as “self-employed” as a means of evading legal obligations regarding conditions of work.

The Committee notes the Government’s indication that: (i) the ITSS ordinarily carries out controls on hours of work, rest periods and overtime, in accordance with the duties assigned under section 12 of Act No. 23/2015, which are performed both in response to complaints and on a pre-planned basis and are usually performed through inspections in workplaces without prior notice; and (ii) section 10 of Royal Decree-Law No. 8/2019 of 8 March concerning urgent measures for ensuring social protection and combating precarious hours of work reforms the amended text of the Workers’ Statute in order to regulate the recording of hours of work in order to ensure compliance with limits on such hours, to create a framework of legal certainty for both workers and enterprises and to enable controls by the ITSS.

The Committee notes the Government’s indication that the Management Plan for Decent Work contains measures aimed at tackling the issue of “fake self-employed” workers – including cases that may arise in cooperatives –, including the implementation of specific inspection campaigns. The Government also indicates that Royal Decree-Law No. 28/2018 of 28 December establishes a new type of serious offence, with a corresponding penalty for the conduct concerned established in the Act on infringements and penalties relating to social regulations. The Committee requests the Government to provide statistical information (number of infringements, penalties) illustrating the results of monitoring the implementation of the Management Plan and enforcing the legal measures referred to above concerning hours of work in agriculture and conditions of work in agricultural cooperatives.